On The Rules Of Market Share Responsibility And Its Application In China

The theory of market share liability comes from the infringement proceeding of the case of DES from USA, then more and more cases came out, many victims can not get the compensation properly. Lawyers began to pay attentions to these situations, then it developed and became perfect. In recent years, many relevant mass product tort litigation in our country has exposed that the legal system is not a sound. This article aims to research the market share liability combining with the actual situation in our country.First of all, this article discusses the establishment and development of market share liability. The rule of market share liability was established formally in the DES case, the victim cannot confirm the offender, so that result in the problem of the establishment of causality is the major obstacles for compensation. Discussing the DES case is the precondition of the further study of theory.Secondly, this paper analyses the application of the market share liability in the judicial practice in the USA. Market share liability is a breakthrough on the traditional tort law of the rule of the causality. This paper analyses the United States frequently asked questions of the entity and procedure when applies this rule, and from the view of policy analyses the market share liability for the product liability law framework and the influence of the economic society, using dialectics to analyse its positive and negative aspects.Thirdly, this article discusses the market share liability rules to apply in our country,also this is the major part of this paper. About the feasibility of market share liability,firstly, on the entity, through compares with the theory of market share liability and common risk theory, and combines with relevant cases at home and abroad, we can analyse these similarities and differences. Secondly, in the process, through analyses our country representative’s action and American securities classaction institution system, we can seek for them how to solve their problems in large-scale infringement cases, and explore how to use the advantage of American securities class action institution to reestablish our representative’s action, then solve large-scale infringement cases such as DES case in our country existing legal system.Finally, the article discusses the content of the market share liability rules if it applies in our country. If our country wants to introduce market share liability rule to tort law system, it should make the precondition clear, involving definition of the market,scope of application and punitive compensation. In the same time, this paper tries to give advice to make our tort liability law more perfect.